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 Post subject: Re: Self employed or not
PostPosted: Mon Mar 22, 2021 6:28 pm 
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heathcote wrote:
A private hire vehicle proprietor/driver cannot be self employed unless they hold a private hire operators license.

It is that simple.

You can be self employed and be able to claim worker's rights under the minimum wage legislation.

They are not mutually excusive.

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 Post subject: Re: Self employed or not
PostPosted: Tue Mar 23, 2021 11:35 am 
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Reading StuartW"s post earlier about the status of a co-op, there was an employment law case a few years ago.

From memory it was a bus garage with I think East Kent Road Car Company, now part of Stagecoach Canterbury. A canteen was set up for the drivers who ran it as a co-operative. The drivers' co-operative "dining club" brought in a few ladies to operate the canteen on company premises. The garage shut down after the Stagecoach take-over. the canteen was shut down and the ladies were left with no work. Again from memory they claimed redundancy and other payments. The Tribunal deemed that all the drivers who were members of the co-operative were the employers, jointly and severally liable to pay the wages of the ladies as well as their redundancy and other payments due.

If ever you are asked to join such an outfit, make sure it is a limited company! A genuine co-operative should have no problems with that sort of set-up. It protects the members to a limited liability, much like shareholders I a limited company, the difference being any profits in a co-operative company limited by guarantee is that members liability is limited to a nominal sum, usually one pound, in the event of things going tits up. A bit like a limited company with shareholders, except shareholders can increase their shareholding and get dividends form any profit made. There's other forms of limited liability groups which aren't limited companies.

My local model railway club is not limited, in fact it doesn't seem to have any sort of formal constitution. It runs an annual exhibition which provides most of its income. It also owns a clubhouse. If the exhibition doesn't make money in a particular year who is liable to pay the bills for hiring the local exhibition hall by the seaside? The answer is the members, individually or collectively. The club is going for one of the limited liability options!


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 Post subject: Re: Self employed or not
PostPosted: Tue Mar 23, 2021 11:44 am 
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Having just done a Companies House Beta search on Brighton & Hove Streamline Taxis Ltd, it is a company limited by guarantee. Members liability in the event of it going tits up is £10 for up to a year after it is wound up. There are no shareholders. It is in effect a co-operative, a members club, like the local golf club...

If anyone wants to look it up, the Companies House facility is very easy to use. But that company can still be an employer.


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 Post subject: Re: Self employed or not
PostPosted: Tue Mar 23, 2021 3:24 pm 
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Thanks, Roy. Should have looked for the company information last week, but thought I'd concentrate on the control, subordination and dependency :? stuff rather than the minutiae of the business's structure and ownership, which as I said doesn't seem particularly relevant as regards employment status of drivers.

Which of course is underlined by your excellent example about the bus drivers' co-op and the canteen ladies being deemed employees and therefore entitled to redundancy.

Likewise, a company limited by guarantee like Streamline is a bit different from the more normal form of shareholder-owned limited company, but as you point out that's not relevant as far as the employment status question is concerned.

(Another slightly oddball business structure is the limited liability partnership, which seems to be a bit of a hybrid partnership/limited company.)

But again it seems likely that unless all members of Streamline are full and equal members then to that extent any driver outside the membership circle is no different from any other driver in the sector, whether it's Dave Chancer's circuit, or all the way up to Uber and Ola. So will all depend on the degree of control, subordination and dependency, blah, blah.

Had a quick look at some of the Streamline stuff, and unfortunately in the publicly-filed documents there's not much evidence about who precisely is or can be a member.

But saw this interesting snippet in Streamline's articles of association (the company's constitution):

Quote:
Non-working member is a Member of the Company who owns a licensed Hackney Carriage or Private Hire vehicle but either has never held or with due notice has ceased to hold a driving licence for the vehicle.

Wonder what the status of the drivers of those vehicles is :-o


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 Post subject: Re: Self employed or not
PostPosted: Tue Mar 23, 2021 3:57 pm 
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heathcote wrote:
A private hire vehicle proprietor/driver cannot be self employed unless they hold a private hire operators license.

It is that simple.

Interesting point, and certainly a factor that could be considered. But if that was the only factor then presumably the whole debate and the various court judgements would never have happened.

And, of course, a driver could have an operator's licence but still work for Uber, but I suppose it depends what they're actually doing with the operator's licence (or they could maybe work for a traditional circuit while also having an operator's licence, but I suppose it depends on the circuit, and what the driver is actually doing with the operator's licence as to whether they'd allow it 8-[ )

Of course, it could work both ways. If a driver does 80% of his work from his own business but 20% as a top up via Uber, then mabye to that degree the dependency argument is undermined so he's also self-employed with regard to Uber.

The court judgement said:

Supreme Court wrote:
Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill.

So if the driver got most of his work via his own 'entreprenurial skill', then to that degree maybe not one of Uber's 'workers' :?


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 Post subject: Re: Self employed or not
PostPosted: Tue Mar 23, 2021 6:40 pm 
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StuartW wrote:

Had a quick look at some of the Streamline stuff, and unfortunately in the publicly-filed documents there's not much evidence about who precisely is or can be a member.

But saw this interesting snippet in Streamline's articles of association (the company's constitution):

Quote:
Non-working member is a Member of the Company who owns a licensed Hackney Carriage or Private Hire vehicle but either has never held or with due notice has ceased to hold a driving licence for the vehicle.

Wonder what the status of the drivers of those vehicles is :-o


According to the ACT they would be an employee of the vehicle proprietor(TAXI)


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 Post subject: Re: Self employed or not
PostPosted: Wed Mar 24, 2021 9:24 pm 
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A Hackney is different to uber. With more and more people paying by card most the money is getting paid straight into my drivers bank account Then at the end of the week he pays me my commission. Uber take all the money set the rate then pay the driver. So i think i will be safe keeping the drivers self-employed for now. If i get the gist of what's being said by some


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 Post subject: Re: Self employed or not
PostPosted: Thu Mar 25, 2021 8:34 am 
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Quote:
The club is going for one of the limited liability options!


they might regret that as you have to produce full accounts and balance sheets which have to be professionally audited it could prove to be an expensive mistake

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 Post subject: Re: Self employed or not
PostPosted: Thu Mar 25, 2021 3:22 pm 
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heathcote wrote:
According to the ACT they would be an employee of the vehicle proprietor(TAXI)

Is that when the 1847 Act says the driver is in the proprietor's employ, or something like that?

Don't think that's of any relevance to the employment status question, since words back then had an entirely different meaning to what they mean now. Suspect that in the 1847 Act 'employ' just means 'use', or similar to that.

It's maybe a bit like the 'worker' status thing in the Uber case, thus a halfway house between an employee and self-employed in employment law terms.

But if 40 years ago you'd come across the word 'worker' in employment law it wouldn't have had any particular meaning in the sense of employment status - it would have just meant much the same as in its everyday meaning.

It's a bit like the word 'company', which many people just use to mean a business. But, as recent discussion demonstrates, company has a very specific meaning in business law, so when people refer to a company it could well be a sole trader, or partnership, or whatever, rather than a proper company in the technical sense.


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 Post subject: Re: Self employed or not
PostPosted: Thu Mar 25, 2021 7:44 pm 
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Have a look at section 49 , 1847 TPCA


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 Post subject: Re: Self employed or not
PostPosted: Thu Mar 25, 2021 8:41 pm 
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Yes, well, but even if you did construe the term literally :-o I suspect it wouldn't help define the word 'employee' in the trade, it would just mean that the likes of s. 48 wouldn't apply to the vast majority of drivers who weren't also proprietors:

TPCA 1847 wrote:
48 Proprietor to retain licences of drivers when in his employ, and to produce the same when summoned.

So we would say that because a jockey is self-employed then s. 48 doesn't apply to them, so I don't think it's particularly useful to use employ/employed in the modern employment law sense :?

Haven't actually looked into it in depth, but a quick google on labour law history suggests that one of the main pieces of legislation in the 19th Century was the Master and Servant Act 1867, thus 20 years after TPCA. So I'm guessing that you wouldn't interpret legislation passed twenty years earlier using a more modern definition of the word employ/employee, particularly when that legislation was about HC licensing rather than employment law. I suspect employed and employee only took on their more current meanings in the last 40 year or so maximum.

Another example is maybe s. 51:

Quote:
Number of persons to be carried in a hackney carriage to be painted thereon.

No hackney carriage shall be used or employed or let to hire, or shall stand or ply for hire, within the prescribed distance, unless the number of persons to be carried by such hackney carriage, in words at length, and in form following, (that is to say,) “To carry persons,” be painted on a plate placed on some conspicuous place on the outside of such carriage, and in legible letters, so as to be clearly distinguishable from the colour of the ground whereon the same are painted, one inch in length, and of a proportionate breadth; and the driver of any such hackney carriage shall not be required to carry in or by such hackney carriage a greater number of persons than the number painted thereon.

I mean, nobody is going to think today that the number of persons has to be literally painted on :-o

And obviously even the term hackney carriage means something different now to what it meant back in 1847 :shock:


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 Post subject: Re: Self employed or not
PostPosted: Thu Mar 25, 2021 9:35 pm 
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StuartW wrote:

And obviously even the term hackney carriage means something different now to what it meant back in 1847 :shock:



The meaning is exactly the same now as it was in 1847, " any wheeled carriage"


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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 26, 2021 5:06 pm 
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heathcote wrote:
StuartW wrote:

And obviously even the term hackney carriage means something different now to what it meant back in 1847 :shock:
The meaning is exactly the same now as it was in 1847, " any wheeled carriage"

Ah, but s.62 means that it's only an HC if there's horses attached [-(

TPCA 1847 wrote:
62 Penalties in case of carriages being unattended at places of public resort.

If the driver of any hackney carriage leave it in any street or at any place of public resort or entertainment, whether it be hired or not, without some one proper to take care of it, any constable may drive away such hackney carriage and deposit it, and the horse or horses harnessed thereto, at some neighbouring livery stable or other place of safe custody; and such driver shall be liable to a penalty not exceeding [F74level 1 on the standard scale]for such offence; and in default of payment of the said penalty upon conviction, and of the expenses of taking and keeping the said hackney carriage and horse or horses, the same, together with the harness belonging thereto, or any of them, shall be sold by order of the justice before whom such conviction is made, and after deducting from the produce of such sale the amount of the said penalty, and of all costs and expenses, as well of the proceedings before such justice as of the taking, keeping, and sale of the said hackney carriage, and of the said horse or horses and harness, the surplus (if any) of the g.,aid produce shall be paid to the proprietor of such hackney carriage.


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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 26, 2021 7:24 pm 
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StuartW wrote:
Ah, but s.62 means that it's only an HC if there's horses attached [-(

No it doesn't.

It is a Hackney Carriage. If you feel the need to attach Horse(s) and abandon the Hackney Carriage, the Horses will be taken to the Stables. (Could be quite a hike for the Coppers though as Livery Stables are spread pretty thin.) The Hackney Carriage could then be towed, probably by something with the Horses under the bonnet.

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 Post subject: Re: Self employed or not
PostPosted: Fri Mar 26, 2021 8:58 pm 
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Section 38 allows any wheeled carriage whatever its shape or form to be licensed as a hackney carriage.

The drafter of this ACT was that good in seeing into the future. Just wish him or her had been alive to draft the 1976 Misc. Provisions Act.


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